A highly anticipated research study on surgical abortion access in New Brunswick recommends the province allow doctors to perform the procedure in community clinics as a way of eliminating barriers to the procedure.
But the report does not call on the federal government — which commissioned the study — to force the province to act, saying it’s not clear Ottawa has a legal leg to stand on.
Its lead author, former University of New Brunswick law professor Jula Hughes, says the data from hospital abortions and those at Fredericton’s Clinic 554 proves that “hospital access is just slower.”
More than 60 per cent of abortions at the clinic were before nine weeks of pregnancy, compared to an average of around 30 per cent in Canadian hospitals, the report says.
“One of the concerns always with abortion access is the timeliness of it because it is such a time-sensitive procedure,” Hughes said in an interview.
“That seems to suggest some procedural barriers just in accessing the hospital system.”
Current New Brunswick regulations require abortions to be performed in hospitals, and only three — two in Moncton and one in Bathurst — offer the service.
Premier Blaine Higgs has argued that is adequate service and the province doesn’t need to offer abortions in more hospitals or to fund them at Clinic 554.
The study disputes that, using abortion statistics from the clinic between 2015 and 2020.
According to those numbers, 85 per cent of abortion patients paid the fee for the service out-of-pocket.
In 14 per cent of cases, the clinic helped cover the cost in full or in part.
“That of course creates the very thing that we’re so proud our medicare system normally avoids, right, which is this two-tier access problem where people who can pay have very straightforward access,” Hughes said.
If the province allowed abortions in clinics, more patients would overcome the barriers they encounter, including a lack of transportation, child care and time off work.
“Local access is really important,” Hughes said.
The fact that the clinic provided 1,007 patients with abortions suggests the existing hospital access isn’t enough, she added.
The report notes that the refusal to fund abortions at Clinic 554 continues even as the Higgs government has legalized other surgeries, such as cataract procedures, in clinics outside hospitals.
A spokesperson for the New Brunswick Department of Health said they could not comment on the study Tuesday.
Unequal access to the procedure
Claire Johnson, a professor in health-care management at the Université de Moncton who studies abortion issues, said the report is right to highlight that many marginalized groups have a harder time getting access.
“It’s hard for certain populations and it’s relatively easy for other ones,” she said, adding the hospital-only Regulation 84-20 is “bizarre and archaic.”
“We don’t really want to tackle the crux of the issue, which is that a lot of people are still very uncomfortable with accessing abortions in New Brunswick.”
The study was commissioned by the Liberal government of Prime Minister Justin Trudeau in 2021, in the run-up to a federal election.
While the authors say abortion access is “unquestionably a human right,” they conclude that the Constitution and the Canada Health Act do not give Ottawa a clear-cut ability to pressure New Brunswick to do more.
“Canada lacks a straightforward articulation of a Charter right to abortion and a readily enforceable statutory right to funded abortion care,” the report says.
In the 2019 election campaign, Trudeau vowed he would “ensure that the New Brunswick government allows access, paid-for access, to clinics that offer abortion services outside of hospitals.”
He told reporters he would tell Higgs “that we will use all tools at our disposal, including tools that exist under the Canada Health Act.”
But other than clawing back token amounts of federal health transfer payments, Trudeau didn’t act.
National strategy needed
In 2021, there were more hints of imminent federal action. Instead, the government commissioned the study.
Hughes says there are things Ottawa can do that don’t require “getting into a tangle with the province of New Brunswick in a legal forum,” such as promoting a national strategy on rural and northern access to abortion.
For the province, she said, “the data that access is not as good as you think it is ought to have some persuasive force.”
But more forceful legal action by Ottawa might go nowhere.
“Whether it would really fundamentally change the experience of people needing abortion care is not obvious to us,” she said.
Feds continue to research issue
A spokesman for federal Health Minister Mark Holland said the government would keep funding research and community groups supporting abortion access and is willing to talk to New Brunswick about reimbursing health transfers it holds back over the issue.
In March, Ottawa said it was clawing back $64,850 from the province over abortion access.
The statement made no mention of any legal steps to force New Brunswick to do more.
Johnson, who plans to run for a provincial Liberal nomination in Moncton, said she expects the status quo to prevail “until we’ve got a provincial government who’s motivated to make these changes. I don’t think the federal government is going to be more aggressive on this.”
University of New Brunswick assistant professor Martha Paynter said earlier this year that new data on medical abortions — such as Mifegymiso, known as the abortion pill — was shifting the debate over access.
Data compiled by Paynter shows more than two-thirds of abortions in New Brunswick in 2022 were medical, not surgical.
Hughes questioned the data, saying the number of Mifegymiso prescriptions doesn’t necessarily reflect the number of abortions because they can be used for other treatments.